Opinion
NO. 01-17-00330-CR
10-24-2017
CEDRIC RUCKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1455880
MEMORANDUM OPINION
Appellant, Cedric Rucker, pleaded guilty without a punishment recommendation to the offense of aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN. § 29.03 (West 2011). Following a presentence investigation, the trial court sentenced Appellant to 10 years in prison.
In his sole issue, Appellant claims his 10-year sentence is excessive and grossly disproportionate to the crime he committed. Thus, he claims, the sentence constitutes cruel and unusual punishment in violation of the United States and Texas constitutions. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; see also Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983) (holding that Eighth Amendment of United States Constitution requires proportionality between criminal sentence and defendant's convicted crime).
"Generally, a sentence within the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution of either Texas or the United States." Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); accord State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (noting that "this Court has traditionally held that punishment assessed within the statutory limits . . . is not excessive, cruel, or unusual"); Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Punishment assessed within the statutory limits is generally not cruel and unusual punishment."). Appellant acknowledges that his 10-year prison sentence is within the punishment range of 5 to 99 years available for the first-degree felony offense of aggravated robbery. See TEX. PENAL CODE ANN. §§ 12.32, 29.03(b) (West 2011). Appellant asserts that the sentence is nonetheless unconstitutional because (1) he has a limited criminal history, (2) he was an "immature 19-year-old," and (3) he has accepted responsibility for his actions. But, as the State points out, Appellant never objected to his sentence in the trial court at any time for any reason.
Failure to object properly to an error at trial, even a constitutional error, waives the complaint on appeal. Perez v. State, 464 S.W.3d 34, 42 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant waived any error regarding violation of state constitutional right against cruel and unusual punishment because argument was presented for first time on appeal); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (holding appellant's assertion that sentence was grossly disproportionate waived when complaint not raised by objection in trial court or by motion for new trial); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (holding that failure to object to sentence in trial court on grounds that it violated federal and state constitutional bans on cruel and unusual punishment waived appellate review of those claims).
Appellant never objected to the alleged disproportionality of his sentence either when the trial court imposed the sentence or in a post-trial motion. We conclude that, by failing to raise the issue with the trial court, Appellant did not preserve any challenge to the disproportionality of his sentence under either the United States or Texas Constitution. We hold that Appellant's complaint regarding his sentence is waived on appeal. See TEX. R. APP. P. 33.1(a); see also Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151-52; Solis, 945 S.W.2d at 301.
We overrule Appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).